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Media Alerts - Khadidja Issa v. School District of Lancaster - Third Circuit
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February 1, 2017
  Khadidja Issa v. School District of Lancaster - Third Circuit
Headline: Third Circuit Affirms District Court's Preliminary Injunction to Allow English Language Learners to Transfer to Schools of Their Choice

Area of Law: Education Law

Issue(s) Presented: Did the District Court err in granting a preliminary injunction to compel the School District of Lancaster to allow under-credited English Language Learners to transfer to a program designed to teach English language skills?

Brief Summary:

Refugees who attended school in the School District of Lancaster asked the District Court for a preliminary injunction compelling the District to allow them to transfer from Phoenix Academy to McCaskey High School's International School. McCaskey offers a program designed principally to teach language skills to English Language Learners. The District Court granted the request and found violations of Pennsylvania law and of a provision of the Equal Educational Opportunities Act of 1974. The Third Circuit affirmed the District Court's decision based on the EEOA violations but not on the state law violations.

Extended Summary:

The appellees in this action are refugees aged 18 to 21. They arrived in the United States in 2014 and international refugee agencies settled them in Lancaster, Pennsylvania. None are native English speakers. They are also considered students with limited or interrupted formal education (SLIFE). SLIFE are English language learners who are two or more years behind their appropriate grade level, possess limited or no literacy in any language, have limited or interrupted formal educational backgrounds, and have endured stressful experiences causing acculturation challenges. Khadidja Issa fled Sudan when she was five years old to escape insecurity under President Omar al-Bashir. She lived in refugee camps in Chad until she was 17, where she received her only prior schooling. Her native language is Fur and she is also fluent in Arabic. In 2015, Issa immigrated to the United States and resettled in Lancaster. When she first arrived, she couldn't speak, read, write or understand any English. She is eligible to attend public school in Pennsylvania through 2019, the year she turns 21. The other plaintiffs in the action shared similar stories, all being refugees with limited understanding of English and over-aged for their grade level.

The School District of Lancaster administers two institutions relevant to this action: McCaskey High School, which the District operates directly, and Phoenix Academy, operated by a private, for-profit company under contract with the District. McCaskey High School consists of two smaller schools, one which a traditional public high school and the other is known as an International School. The International School is a program designed primarily to teach language skills to students who speak little or no English. Students generally attend the International School for one year, during which they receive intensive English as a second language (ESL) support through a teaching method called "sheltered instruction." Under that method, English Language Learners (ELLs), are grouped together in content courses such as science and math, with other ELLs at comparable English-proficiency levels. ELLs are hence "sheltered" in those classes from other ELLs at higher proficiency levels and from native English Speakers. The International School also introduces ELLs to American cultural values and beliefs. Phoenix Academy is an alternative education program intended to serve at risk students over-age for their grade, and in danger of not graduating high school before they age out of public-school eligibility at 21. Phoenix's principal missions are to ensure that students accumulate enough credits to graduate and to change students' negative behaviors - not to further their academic proficiencies.

In order to change student's "anti-social" behaviors, Phoenix enforces stringent security measures not in effect at McCaskey. These include daily pat down searches, a strict dress code and a ban on students bringing in personal belongings such as backpacks, food, and even homework. At Phoenix, students take an accelerated curriculum which allows them to earn a high school diploma in half the time of a traditional high school. The result is that students at McCaskey, receive twenty-four more hours of instruction per class than do students at Phoenix. In regards to ESL support, Phoenix offers ELLs one 80-minute ESL course per day. ELLs take all of their content courses with Phoenix's general population under the accelerated model. In addition the School District does not assess in any measurable way whether Phoenix's program helps ELLs overcome their language barriers.

Under the District's enrollment policies new-to-the-District students over age 17 and under-credited are not offered a choice of whether to enroll at Phoenix or McCaskey. The School District unilaterally assigns them to Phoenix and doesn't allow them to transfer to McCaskey. This mandatory enrollment rule applies regardless of a student's English proficiency or educational background and even if the student has several years of public school eligibility left under Pennsylvania law. For Issa and the other plaintiffs, a common complaint is that they didn't understand the vast majority of content taught in their non-ESL classes. In addition, Phoenix's accelerated curriculum moved too quickly for them to grasp. Despite these difficulties, they accrued credits and advanced to higher-grade levels.

In 2016, the plaintiffs sued the School District in the District Court for the Eastern District of Pennsylvania, requesting a preliminary injunction allowing them and similarly situated ELLs to enroll in and attend McCaskey. The District Court granted the preliminary injunction and found likely violations of the EEOA and state law. The School District appealed, asking the Third Circuit to stay the injunction's enforcement. The Court began its analysis by interpreting the text of §1703(f) of the EEOA. The Court held that an individual alleging a violation of § 1703(f) must satisfy four elements: (1) the defendant must be an educational agency, (2) the plaintiff must face language barriers impeding her equal participation in the defendant's instructional programs, (3) the defendant must have failed to take appropriate action to overcome those barriers, and (4) the plaintiff must have been denied equal educational opportunity on account of her race, color, sex, or national origin.
The Court held that there is no dispute that the plaintiff's satisfied elements one and two of the statute. In regards to the third element that defendant must have failed to take appropriate action, the court looked to the Supreme Court's decision in Castaneda for guidance as to what entails "appropriate action." Castaneda provides a three-part test to resolve whether the School District took "appropriate action" to overcome the plaintiffs' language barriers under § 1703(f). The Court found that the Lancaster School District floundered on Castaneda's first and third prongs. The District failed to satisfy the first prong of the test as it failed to pursue a program informed by an educational theory recognized as sound by some experts in the field. Experts consistently testified that Phoenix's accelerated, non-sheltered program is unsound for SLIFE. As to the third prong, the Court held that the District failed to produce results indicating that language barriers were being overcome, as the School District does not keep data on the efficacy of Phoenix's ESL program. The Court concluded that plaintiffs had satisfied element three of the statute.

The Court also held that the plaintiffs met the fourth and final element of §1703(f). Section 1703(f) requires that the denial of the equal educational opportunity - in § 1703(f)'s case, the language barrier that is not being overcome - must stem from race, color, sex, or national origin, rather than from, for example, a cognitive disability covered by a different remedial scheme, like the Individuals with Disabilities Education Act. However it does not require a showing of discrimination. The Court concluded that the record fully supported that the plaintiff's language barriers stemmed from their national origins. Having satisfied the four elements of §1703(f), the Court affirmed the District Court's preliminary injunction for violations of the EEOA, finding the lower court had properly found the plaintiffs showed irreparable harm sufficient to justify the injunction. The Court remanded for consideration of cognizability of the state court claims.

The full opinion can be found at

Panel: Fisher, Krause, Melloy, Circuit Judges

Argument Date: December 5, 2016

Date of Issued Opinion: January 30, 2017

Docket Number: No. 16-3528

Decided: Affirmed

Case Alert Author: Cynthia C. Pereira

Counsel: Sharon M. O'Donnell, Thomas A. Specht, Counsel for Appellant; Hedya Aryani, Seth Kreimer, Maura I. McInerney, Kristina Moon, Kathleen A. Mullen, Thomas B. Schmidt, III, Eric J. Rothschild, Molly M. Tack-Hooper, Witold J. Walczak, Counsel for Appellees; Tovah R. Calderon, Erin H. Flynn, Counsel for Amicus Appellee.

Author of Opinion: Circuit Judge Fisher

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 02/01/2017 01:49 PM     3rd Circuit  

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